Art Law – Outline
Professor Amy Adler
Fall 2006
- ART AND THE FIRST AMENDMENT
- Introduction
- First amendment
- Congress shall make no law . . . abridging the freedom of speech
- Exodus 20, Ten Commandments
- Thou shalt not make unto thee any graven image, or any likeness of any thing that is in heaven above, or that is in the earth beneath, or that is in the water under the earth
- Is postmodernism a kind of iconoclasm, breaking down worship of authorship, originality, etc?
- The Artist’s Right to Free Expression: Censorship Law and Theory
- Obscenity Law
- Themes
- Defining obscenity
- Justifying excluding obscenity from first amendment protection
- Evolution of Supreme Court jurisprudence
- Roth (1957) to Miller and Paris Adult Theater (1973)
- Roth says obscenity is not an idea and thus does not trigger first amendment protection
- Upholds marketplace of ideas vision of the 1st amendment
- Does not look at obscenity’s harm
- Miller test
- Appeals to prurient interest
- Under community standards
- Patently offensive
- Under community standards
- Lacks serious literary, artistic, political, or scientific value
- Under reasonable person standard, per Pope v. Illinois
- Paris Adult Theater
- Introduces a moral rationale, including right to maintain a decent society, setting the tone of commerce, and possibly public safety
- Miller in practice
- Jenkins v. GA (1974)
- Film Carnal Knowledge not “patently offensive,” so not obscene
- Looks like it filters out some works, but the Sup Ct is a very high-level filter
- Obscenity and Post-Modernism
- Art reacts against notion that it must have “serious artistic value”
- Case studies
- Mapplethorp at the CincinnatiContemporaryArtsCenter
- Photography
- Maybe an easy case because his style is traditional
- Corcoran cancelled his show, ex. of self-censorship
- Barbara Nitke’s photography website requires an 18+ disclaimer
- Major theory readings and discussion
- Adler, Post-Modern Art and the Death of Obscenity Law
- Post-Modern art
- Attacks distinctions b/w good and bad art, high art and pop culture
- Marks end of originality
- No sincere genius artist
- Intersects with obscenity
- Legal definition of art
- References Bleistein to say cts shouldn’t judge art’s worth
- Can’t be defined by artist’s intention
- Opens defense of intent to all pornographers
- Post-modern artists eschew sincere intent
- Can’t be defined by art world’s acceptance
- Doesn’t account for performance artists like Karen Finley who perform in clubs
- Doesn’t protect undiscovered artists
- Fact finders won’t know art when they see it
- “‘Art,’ by its nature, will call into question any definition that we ascribe to it. As soon as we put up a boundary, an artist will violate it, because that is what artists do.”
- Impossible to simultaneously both protect art and protect people from obscenity
- Discussion
- Marketplace of ideas rationale may be grounded in assumption that it will uncover political truth
- Tied to concepts of democracy
- Not the same as liberty
- Obscene material may speak to the body rather than the mind
- Marketing something as porn may reduce the likelihood that a court will find it valuable
- But artist may not have control of this
- Speech with some value can be banned under Miller
- Child Pornography Law
- Federal statute developed after Ferber
- Child Protection Act of 1984
- Prohibits use of child (under 18) in a sexual performance
- Defines performance as any play, motion picture, photo, or dance
- Emphasizes live or photographic displays, not text
- Defines sexual conduct as
- Actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, s-m abuse, or lewd exhibition of the genitals
- Banning child porn a categorical approach to censorship
- No exceptions for works of value
- Brennan in Ferber would make an exception
- O’Connor would not
- Material can be child porn without being obscene
- Diverges from traditional 1st amendment principles
- Speech banned b/c of underlying crime it expresses
- No overbreadth doctrine
- Doctrinal development
- New York v. Ferber, 458 U.S. 747 (1982)
- Upholds NY’s child porn law under the rational that children are harmed in the production of the material
- Also, record of abuse haunts child, need to dry up the market, value of speech de minimis
- Does not include a rationale that looking at child porn is harmful
- Suggests that if one really needs to create such works, use older actors or simulation
- U.S. v. Dost, (S.D. Cal. 1986)
- Test for determining “lascivious exhibition of genitals”
- Focal point is the genital or pubic area?
- Setting sexually suggestive?
- Unnatural pose or inappropriate attire?
- Nude?
- Suggests sexual coyness or a willingness to engage in sexual activity?
- Intended or designed to elicit a sexual response in the viewer?
- Test prevails in most jurisdictions
- Osborne v. Ohio (1990)
- Criminalizes mere possession of child porn
- Differs from Stanley v. GA in the obscenity context
- Which said “the State may no more prohibit mere possession of obscene matter on the ground that it may lead to antisocial conduct than it may prohibit possession of chemistry books on the ground that they may lead to the manufacture of homemade spirits.”
- U.S. v. Knox, (3d. Cir. 1994)
- Ct holds that lascivious exhibition of the genitals can include clothed, indiscernible genitals
- Ashcroft v. Free Speech Coalition(2002)
- Virtual child porn law struck down
- Prospect of harm doesn’t justify censorship
- Shows concern about content, not harm in production
- Congress’ rationale for law
- Photos used to seduce kids, whet appetite of potential pedophiles, create a market
- Hard to prosecute underlying act
- Case studies
- Sally Mann
- A serious artist, but maybe only prosecutorial discretion has kept her out of jail
- Lesser artists
- Jock Sturges, Richard Prince’s Spiritual America
- Larry Clark
- Complicit. Perhaps his camera even encourages behavior.
- Calvin Klein ad campaign
- Hugely controversial, but hugely popular
- Major theory readings and discussion
- Adler, Inverting the First Amendment (2001)
- Cts have never defined child pornography
- A passive approach
- Expansion of law increasingly unrelated to harms of production
- Tries to encompass all the things pedophiles find arousing
- Sweeps in artists and family photographers
- Constitutional problems
- Vague and overbroad
- Allows prosecution for pictures w/o underlying act of child molestation
- Without an exception for works of value, child porn viewing has become a thought crime
- Law treats speech as so powerful that it will conjure up what it depicts
- Reverts distinction b/w speech and what it represents or causes
- A superstitious view of speech
- Adler, The Perverse Law of Child Pornography (2001)
- Child porn law has reinforced the problem it seeks to attack
- Focus on child pornography makes children sexual objects
- “Censorship law responds to and shapes a cultural crisis.”
- Law has acquired a “sense of boundlessness” in its development
- Legislatures push limits w/o judicial restraint
- Discussion
- Cases like Knox contribute to the changed way of looking at children
- Ask us to take on the mind of a pedophile
- Creates intrusion of sexuality in otherwise nonsexual situations
- Photography particular focus of child porn angst
- Creates/perpetuates a crime
- Betrays subject
- Betrays viewer
- The Feminist Anti Pornography Movement
- Catharine Mackinnon’s view of pornography
- Central to the subordination of women
- Women harmed during the production
- Representation perpetuates subordination
- “All pornography is the documentation of a rape”
- Conflates the underlying act, the image, and the image’s effect
- Proposed legislation
- Definition of pornography
- The sexually explicit subordination of women
- Bans images and words
- Does not incorporate a Miller obscenity standard
- Should not be included in the marketplace of ideas
- Free speech by men silences women
- A market failure
- Value is irrelevant
- Porn is not speech
- It is the act of sex
- Suggests that this is more of a 14th amendment issue than a 1st
- Case studies
- Andrea Fraser’s videoUntitled in which she’s commissioned to have sex
- She is the agent, but Mackinnon still sees the image as subordination
- Adler said the people at the gallery were all teenage boys
- Carolee Schneemann’sInterior Scroll
- Reclamation of the female body in the 1970s
- Annie Sprinkle
- Combines art and porn
- Major theory readings and discussion
- MacKinnon’s Not a Moral Issue (1983)
- Compares obscenity to pornography
- Obscenity is an abstract moral idea
- Standard based on the male perspective
- Obscenity makes rules, but does not truly make porn unavailable or illegitimate
- In fact, it may enhance appeal
- Porn is a concrete political practice
- Men have sex with images
- Porn is like segregation
- Whites only signs
- Porn’s value is irrelevant because all porn harms women
- Porn chills women’s speech
- “Silence is not eloquent”
- Porn creates a social reality
- Its harm becomes invisible
- MacKinnon’s Only Words (1993)
- Harm is relived in images
- Other harmful speech is treated as an act
- E.g., saying kill to an attack law
- All porn made under conditions of inequality based on sex
- American Booksellers v. Hudnut (7th Cir. 1985)
- Finds Indianapolis anti-pornography ordinance unconstitutional
- Easterbrook’s majority opinion
- Ordinance amounts to thought control
- Discriminates based on content
- “Under the First Amendment…there is no such thing as a false idea”
- “Governments that want stasis start by restricting speech.”
- Accepts ordinance’s premise
- Porn perpetuates subordination
- Believes porn is protected because of its harm
- Distinguishes b/w speech and conduct
- “Unhappy effects depend on mental intermediation.”
- “Indianapolis seeks to prohibit certain speech b/c it . . . influences social relations and politics on a grand scale, that it controls attitudes at home and in the legislature. This precludes a characterization of the speech as low value.”
- “The image of pain is not necessarily pain”
- Debate over Mackinnon
- Infantilizes women
- Dismisses their own agency b/c women live with a false consciousness
- Sees pleasure as Pavlovian
- But rightly recognizes that women have less agency than men
- Trouble harmonizing liberty and equality
- Hate Speech
- Background
- Chaplinsky standards
- Two types of speech not protected by the First Amendment
- Fighting words
- NB: requires person to be empowered enough to strike back
- Incitement to imminent lawless action
- Speech that’s limited outside the 1st amendment
- Securities law
- Contract
- Hate speech allowed under the 1st amendment
- Matsuda’s definition of hate speech
- Message of racial inferiority
- Directed against a historically oppressed group
- Message persecutorial, hateful, and degrading
- Under a community standard, thus possibly allowing victims to use hate speech to other victims?
- For hard cases, ask victims
- Irony, intent may not matter
- Case studies
- Serrano’s KKK portraits
- Artists not making a judgment about his subjects
- Unclear if subject or photographer is in power
- Unclear if these portraits can be distinguished from KKK promotional photos
- Jewish Museum’s exhibit Mirroring Evil: Nazi Imagery/Recent Art
- Ali G./Borat
- “Throw the Jew Down the Well”
- Activist “hate art”
- Pink Triangle
- Central symbol of AIDS movement originally used to identify homosexuals during Holocaust
- Wojnarowicz’s America
- Photograph of “Fight AIDS Kill a Quere” scrawled in graffiti
- Karen Finley’sI’m an Ass Man
- Brutal monologue about a rape from the rapist’s point of view”
- Major theory readings and discussion
- Matsuda’sPublic Response to Racist Speech: Considering the Victim’s Story (1989)
- Identifies two harms
- Individual
- Pain and psychic harm for victims
- Spirit murder
- Social
- Mechanism of subordination and inequality
- Recommends criminal and civil sanctions as response to racist speech
- NB: Mackinnon didn’t want to entrust sexist state to enforce criminal laws
- Hate speech restricts victims’ liberty
- They quit jobs, avoid certain public places, self-censor
- Sees protection of hate speech as state action
- Believes limited definition will prevent censorship floodgates
- Adler’sWhat’s Left?: Hate Speech, Pornography, and the Problem for Artistic Expression (1996)
- In calling for censorship, leftists endanger activist speech that seeks to undermine porno and hate speech
- “Victims” adopting the language of “victimizers” to turn oppression on its head
- How can Mackinnon, Matsuda, et al. distinguish b/w subversion and oppression?
- “There is no way to draw a principled distinction between ‘art’ and ‘pornography,’ or ‘art’ and ‘hate speech’; a substantial overlap between these terms will always exist.”
- “Leftists must make a choice: they can adopt a system of censorship, or they can offer full protection to activism. They can’t do both.”
- Potential ways to distinguish good speech and bad
- Artistic status?
- Over and under inclusive
- Context?
- Always changing, and changing meaning of speech.
- Victims as judge?
- Problems of essentialism.
- Intentionality: is the speaker a victim?
- Impossible to discern intent.
- Effect is effect.
- Insider-status may not reveal intent?
- Other considerations
- Mackinnonwould likely reject use of pornography by gay, lesbian, and AIDS activists
- Right-wings appropriate leftist rhetoric of discrimination and victimization and use it to fight anti-discrimination policies
- What is Art and (Why) Is Art Protected by the First Amendment?
- What is art?
- Tariff and customs cases
- U.S. v. Perry (U.S. 1892)
- 4 categories
- Fine art, minor objects of art, objects of art with a primarily ornamental and incidentally useful purpose, useful objects that please the eye
- Based on a standard of beauty, ornament, and pleasure to the eye
- Hurley v. Irish-American Parade,U.S. 1995
- “the unquestionably shielded painting of Jackson Pollock, music of Arnold Schonberg, or Jabberwocky verse of Lewis Carroll”
- An under-theorized statement
- Bery v. NYC (SDNY 1995) – I
- Artists not exempt from NYC’s outdoor vendor licensing law
- Law has a rational basis of keeping sidewalks clear
- Law is content-neutral
- Art does not implicate the 1st amendment
- No verbal elements
- Does not add to political dialog
- Bery v. NYC (2d Cir. 1996) – II
- Law fails under strict scrutiny
- Strict scrutiny req’d b/c 1st amendment rights are implicated
- “Our cases have never suggested that expression about philosophical, social, artistic, economic, literary, or ethical matters . . . is not entitled full 1st amendment protection.”
- But what about art that doesn’t convey ideas?
- “Visual art is as wide ranging in its depiction of ideas, concepts, and emotions as any book, treatise, pamphlet . . .”
- But are ideas in art that transparent?
- Ideas in art transcend verbal language to both the educated and the illiterate
- Mastrovincenzo v. City of New York, SDNY 2004
- To determine if graffiti-painted hats are art ct looks to
- Individualized creation by the particular artist
- Artist’s primary motivation for producing and selling the item
- Vendor’s bona fides as an artists
- Whether the vendor attempts to convey a message
- Whether item appears to contain any elements of expression
- Decision
- “Art . . . is intentionally produced by the artist to communicate some idea or message.”
- Is this so?
- Case studies
- Warhol
- Danto says Warhol made art purely conceptual
- Warhol didn’t even make or touch some of his “art”
- Major theory readings and discussion
- Bery II ct doesn’t provides a satisfactory reason for why art should be protected under the 1st amendment
- Does uniqueness v. mass production determine whether Mastrovincenzo’s hats are art?
- Art v. craft, fashion, commerce?
- Text v. Image
- Greater protection of verbal than visual speech
- Obscenity generally about images
- Kaplan v. California (1973) allows prosecution of obscene textual material
- But, “A book seems to have a different and preferred place in our hierarchy of values, and so it should be.”
- Child porn exclusively about images
- Texas v. Johnson, U.S. (1989)
- Flag burning treated as speech insofar as it is expressive conduct (symbolic speech)
- Test
- Is it expressive?
- Spence test
- Intent to convey a particularized message?
- Likelihood great that the message would be understood by those who viewed it?
- Context of the conduct?
- If expressive, can the gov’t still restrict it?
- O’Brien test
- W/in gov’t’s const’l power?
- Furthers an important or substantial gov’t interest?
- Gov’t’s interested unrelated to the suppression of free expression?
- Incidental restriction on speech no greater than essential for furtherance of interest?
- Rehnquist’s dissent
- Conflates image with something much larger
- “The American flag…has come to be the visible symbol embodying our Nation”
- Armed forces “fight and perhaps die for the flag”
- Acknowledges mystical power of the symbol
- “Millions and millions of Americans regard it with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs they may have.”
- “The uniquely deep awe and respect for our flag felt by virtually all of us…”
- Case studies
- Glenn Ligon’s text paintings
- Reflect on the difference b/w seeing an image and reading about it
- “dead” and “two naked children in bed with a naked man”
- Serrano’s KKK photos
- What sort of wall text would not influence the meaning of these portraits?
- Nazi degenerate art show
- Graffiti-like wall text influenced the perception of the pieces
- Major theory readings and discussion
- Adler, The Art of Censorship
- Contemporary 1st amendment debates must be understood in context of historical iconoclasm and anxiety about visual representation
- “Visual images are frequently perceived as more powerful and less controllable than verbal speech. They do not fit comfortably w/in our current notion of a reasoned, rational marketplace of ideas.”
- Reexamines flag burning in visual terms
- Power assigned to the flag a kind of idolatry
- Contradictions
- Art dismissed as pointless and self-indulgent
- Yet ferociously resisted
- Art’s dangerousness valuable under the 1st amendment
- Bypasses reason – appeals directly to the senses
- Freedberg, Idolatry and Iconoclasm from The Power of Images
- The power of the image, which is fused to its prototype, inspires an impulse to both worship and destroy.
- Images destroyed for political and religious reasons
- Nazis as lovers and destroyers of art
- Those in power seek to control images
- Images dangerous b/c their effects cannot be controlled
- Themes
- Gender
- Danger of seduction
- Class
- Images used to educate but also incite the lower classes/illiterate
- Religion
- Images a threat to God
- Few art historians acknowledge the anxiety surrounding images
- Think Elgin Marbles
- Dance
- Doctrine
- Miller v.